People ex rel. St. Clair v. Davis

The relator was arrested and brought before a magistrate of' the city of New York charged with “ disorderly conduct — soliciting.” The information was that, being a common prostitute, she was on the night of March 20, 1909, loitering on the Bowery, which is a public thoroughfare, soliciting and importuning men passing in and along said thoroughfare, for the purpose of prostitution, to the great annoyance of the People of the State of New York residing in the neighborhood and passing thereby. After a plea of not guilty, evidence was introduced before the magistrate, she was convicted and committed to the State Reformatory for Women at Bedford, to be there confined for a term not to exceed three years, unless sooner paroled or discharged therefrom, pursuant to the provisions of section 146 of the State Charities Law. (See Gen. Laws, chap. 26 [Laws of 1896, chap. 546], § 146, as amd. by Laws of 1899, chap. 632, and Laws of 1904, chaps. 169, 453; revised by Consol. Laws, chap. 55 [Laws of 1909, chap. 57], § 226.) An appeal from the judgment of conviction was allowed to the Court of General Sessions of the Peace, and from its judgment of affirmance an appeal was taken to the Appellate Division of our Supreme Court sitting in the First Department, where the judgment was again affirmed (People ex rel. Treiber v. Sinclair, 133 App. Div. 944 ). Relator then sued out a writ of habeas corpus, and from an order dismissing the writ and remanding her to custody, this appeal is taken.

Three grounds of reversal have been urged upon our attention : First, that the offense with which the relator is charged is not set forth with definite certainty; second, that the magistrate exceeded his jurisdiction in sentencing her to the Bedford Reformatory; and,

At the threshold of the case we are met by a contention on the part of the district attorney that the precise questions here presented were involved in the appeal taken to the Appellate Division of the First Department, and that its decision is final until reversed upon appeal. That these questions were argued before that court is not disputed. The appellant contends that some at least of said alleged grounds of error were not set forth in the affidavit upon which the appeal was allowed, and that, therefore, the appellate court was precluded from considering them. (Code Grim. Proc. §751; People v. Jewett, 69 Hun, 550 ; People v. Giles, 152 N. Y. 136 .) The first one certainly was, and we need give it no further consideration. As to the others, it is not so clear. But the district attorney contends that if the previous decision is not conclusive, the second question cannot be raised on habeas corpus, for the reason that relator is held upon a commitment which is in the nature of a final judgment. (People ex rel. Kuhn v. Protestant Episcopal House of Mercy, 133 N. Y. 207 .) The point is well taken, unless there was total lack of jurisdiction, either of the person of defendant or of the offense charged, or want of power to pronounce judgment after conviction. It is not enough that such power may have been erroneously exercised. (People ex rel. Scharff v. Frost, 198 N. Y. 110 .) The jurisdiction of the person of defendant is not in question. The statute defining what shall constitute disorderly conduct tending to a breach of the peace in the city and county of Hew York specifies several things which shall be deemed offenses thereunder if committed in any thoroughfare or public place therein. (Consol. Act [Laws of 1882, chap. 410], § 1458; Greater N. Y. Charter [Laws of 1901, chap. 466], § 1610.) One of these offenses is thus described : “ Every common prostitute or nightwalker loitering or being in any thoroughfare or public place for the purpose of prostitution or solicitation, to the annoyance of the inhabitants or passers-by.” That magistrates have jurisdiction to try persons charged with disorderly conduct that tends to a breach of the peace as therein defined seems to be clear. (Laws of 1882, chap. 410, § 1461; Greater N. Y. Charter, § 707, as amd. by Laws of 1905, chap. 638; People ex rel. Frank v. Daris, 80 App. Div. 448 ;

Prior to 1905 it may be conceded that she could not have been. (People ex rel. Frank v. Davis, supra ; People ex rel. Clark v. Keeper, etc., supra.) In that year a new section was added to the Greater ifew York charter, known as section 707-a (Laws of 1905, chap. 610), which provided as follows: “ Whenever a woman between the ages of sixteen and thirty is convicted in The City of ifew York of habitual drunkenness, of being a common prostitute, of soliciting on public streets or places for purposes of prostitution, of frequenting disorderly houses or houses of prostitution, or of vagrancy under subdivisions three or four of section eight hundred and eighty-seven of the Code of Criminal Procedure, she may be committed to the State Reformatory for Women at Bedford, pursuant to the provisions of section one hundred and forty-six of the State Charities Law, to be there confined subject to the provisions of such law and of any other statute relating to such reformatory.” Section 146 of the State Charities Law (Gen. Laws, chap. 26 ; Laws of 1896, chap. 546) provides among other things that “ the term of such sentence and commitment shall be five years, but such female may be sooner discharged therefrom by the board of managers.” This clause of section 146 was amended by chapter 632 of the Laws of 1899 so as to provide that the term should be three years. By

In the act amending the charter five offenses are referred to. One of these is “ soliciting on-public streets or places for purposes •of prostitution.” Was this the offense described in the section of the Consolidation Act above referred to, and was it the intention of the Legislature by such amendment to prescribe a punishment for that offense ? It is true that the generic term “ disorderly conduct that tends to a breach of the peace ” is not used therein, followed by a specification of offenses- grouped thereunder, as it is in the section of the Consolidation Act. But the similarity of language of these sections, so far as they relate to soliciting for purposes of prostitution, clearly indicates that the same offense was intended in each. In the Consolidation Act the words employed are “ loitering or being in any thoroughfare or public place for the purpose of prostitution or solicitation,” while those in the charter provision are “ soliciting on public streets Or places for purposes of prostitution.” Short of identity of language, the intent to refer to the same course of conduct could hardly be more forcibly expressed. It is apparent that the charter section does not apply to all of the offenses specifically described in the Consolidation Act under the generic term “ disorderly conduct.” One of these is “ [suffering] to be at large any unmuzzled, ferocious or vicious dog;” another relates to , “ threatening, abusive or insulting behavior.” These offenses might be committed by either sex, but the second offense specified therein is one which can be committed by women exclusively. The entire charter provision is limited in its application to women, and those of a particular class. The Legislature must have intended by this new provision to refer to some existing evil, and counsel for the appellant has not suggested, nor have I been able to find, any other statutory definition of an offense to which these words of the act in question could' so clearly apply as to the one referred to and contained in the Kew York Consolidation Act, It is .true that the

But appellant contends that if such act is applicable it is unconstitutional because it violates article 1, section 6, of the State Constitution, to the effect that no person shall be deprived of liberty without due process of law, or article 1, section 1, thereof, that no member of the State shall be deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers. Appellant’s whole argument upon this branch of the case is made to depend upon the proposition that the Legislature cannot pass an act which may result in persons being restrained of liberty for a period not to exceed three years, except after trial by a common-law jury. There is no claim that the character of the offense is such that it is not within the power of the Legislature to commit to police magistrates the power to try persons accused of the same without a jury. This particular offense has been characterized as one which did not reach to the importance of a misdemeanor, either under the statute or at common law. (People ex rel. Frank v. Davis, supra.) But the people of the State have expressly declared that personal liberty is not endangered in violation of the constitutional- provision above referred to by permitting even misdemeanors to be tried without a jury. (Const, art. 6, § 23 ; People ex rel. Comaford v. Dutcher, 83 N. Y. 240 ; People ex rel. Cosgriff v. Craig, 195 id. 190.) It may be that in a sense one of the elements which tends to characterize the degree of crime is the punishment prescribed therefor. There may be a limit upon the power of the Legislature to prescribe punishment which is not in some degree commensurate with the gravity of the offense. (People ex rel. Cosgriff v. Craig, supra ; Weems v. United States, 217 U. S. 349 .) If such is the fact this statute does not exceed the limit of legislative power. As we have before indicated, its purpose is not wholly penal. The tendency of modern legislation is, so long as there is hope of reformation, to reform as well as. to punish offenders. The restraint imposed under this commitment is not necessarily long. If it appears that her release is not incompatible with the welfare of society the relator may be discharged long before the maximum limit has been reached. The purpose of

But we think also that this legislation may be viewed as a wise exercise of the police power in the interest of the public health and morals. (Duffy v. People, 6 Hill, 75 ; People v. McCarthy, 45 How. Pr. 97 ; Steinert v. Sobey, 14 App. Div. 505 .) The true method of dealing with the social evil has provoked much discussion, and led to the expression of widely divergent opinions. But though differences of opinion may exist as to the remedy, we think none can exist as to the fact that to permit common prostitutes to solicit upon the public streets, unrestrained and without supervision, may seriously affect both public health and public morals. Mere temporary restraint in a penal institution for a brief period accomplishes little in the way of protection. Legislation which has for its object not only the cure of physical disease but moral reformation is wholesome in its character, and the courts should be reluctant to thwart or impede its efficiency.

The order appealed from should be affirmed.

Jenks, P. J., Hirschberg, Thomas and Dich, JJ., concurred.

Order affirmed.